The applicant, Mr Franz Fischer, is an Austrian national, who was born in
1974 and lives in Wilhelmsburg. He was represented before the Court
by Mr S. Gloss, a lawyer practising in St. Pölten.

A. The circumstances of the case

The facts of the case, as submitted by the applicant,
may be summarised as follows.

On 29 May 2001 the European Court of Human Rights
delivered a judgment in a case which had been introduced by the applicant
(Franz Fischer
v. Austria, no. 37950/97, unreported). It found a violation of
Article 4 of Protocol No. 7 in that the applicant had consecutively been
tried and punished for two offences containing the same essential elements,
first by the administrative authority for the offence of drunken driving
under section 5 (1) and 99 (1) (a) of the Road Traffic Act and, after
that decision had become final, by the Criminal Court for causing death
by negligence with the special element under Article 81 § 2 of the
Criminal Code of “allowing himself to become intoxicated”, whereby
intoxication is irrebuttably presumed where a person’s blood alcohol
level is above 0.8 grams per litre.

On 30 May 2001 the applicant filed an application
with the Supreme Court under Article 363a of the Code of Criminal Procedure
(see below), requesting a retrial.

On 30 October 2001 the applicant requested the
Supreme Court to hold a hearing.

On 22 November 2001 the Supreme Court dismissed
the application without holding a hearing.

The Supreme Court found that the requirements
of Article 363a of the Code of Criminal Procedure were not met, as the Franz Fischer
v. Austria judgment had not established that there had been a
violation of Article 4 of Protocol No. 7 “on account of a decision
of a criminal court”. In reaching this conclusion the Supreme Court
had regard to the Court’s reasoning whereby the question whether or
not the non
bis in idem principle was violated concerned the relationship
between the two offences at issue but not the order in which the two
sets of proceedings were conducted, and that the Contracting State remained
free to determine which of the two offences was to be prosecuted.

The Supreme Court’s decision was served on
17 January 2002.

B. Relevant domestic law

Under the heading “retrial” (Erneuerung des Strafverfahrens) the Code of Criminal Procedure
(Strafprozeßordnung)
provides as follows:

Article 363a

“1. If it is established in a judgment of the
European Court of Human Rights that there has been a violation of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(Bundesgesetzblatt
[Official Gazette] no. 210/1958) or of one of its Protocols on account
of a decision or order of a criminal court, a retrial shall be held
on application in so far as it cannot be ruled out that the violation
might have affected the content of a criminal court’s decision in
a manner detrimental to the person concerned.

2. All applications for a retrial shall be decided
by the Supreme Court. ...”

Article 363b

“1. On an application for a retrial, the Supreme
Court shall deliberate in private only where the Procurator General
or the judge rapporteur proposes that a decision be taken on one of
the grounds set out in paragraphs 2 and 3.

2. Where the Supreme
Court deliberates in private, it may refuse an application

...

if it unanimously considers the application to
be manifestly ill-founded.

...”

COMPLAINT

The applicant complained under Article 6 of the
Convention that the Supreme Court had failed to hold a public oral hearing
in the proceedings concerning his application under Article 363a of
the Code of Criminal Procedure.

THE LAW

The applicant complained that the proceedings
concerning his application for a retrial following the Court’s Franz Fischer
v. Austria judgement of 29 May 2001 had not fulfilled the requirements
of Article 6, which, so far as relevant, reads as follows:

“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing ... by
[a] ... tribunal...”

The Court will first examine whether Article
6 applies to the proceedings at issue. In this connection, the Court
reiterates that according to established case-law, Article 6 does not
apply to proceedings for the reopening of criminal proceedings, given
that someone who applies for his case to be reopened and whose sentence
has become final is not “charged with a criminal offence” within
the meaning of the said Article (see Dankevich v. Ukraine (dec.), no. 40679/98, 25 May 1999, unreported; Sonnleitner
v. Austria (dec.), no. 34813/97, 6 January 2000, unreported;
and Kucera
v. Austria (dec.), no. 40072/98, 20 March 2001, unreported, each
with further references).

Likewise, Article 6 has been found not to apply
to proceedings on a plea of nullity for the preservation of the law,
brought with the aim of setting aside a final conviction following the
finding of a violation by the Court, as in such proceedings the person
concerned was not “charged with a criminal offence” (Oberschlick v. Austria, nos. 19255/92 and 21655/93, Commission
decision of 16 May 1995, Decisions and Reports 81, p. 5).

The Court considers that proceedings under Article
363a of the Austrian Code of Criminal Procedure, concerning an application
for a retrial following the finding of a violation by the European Court
of Human Rights, are akin to proceedings for the reopening of criminal
proceedings. They are brought by a person whose conviction has become
final and do not concern the “determination of a criminal charge”
but the question whether or not the conditions for granting a retrial
are met. The Court, therefore, concludes that Article 6 does not apply
to the proceedings in question.

As far as the applicant may be understood to
be complaining that Austria has failed to comply with the Court’s Franz Fischer
v. Austria judgment of 29 May 2001, the Court observes that it
has no jurisdiction to examine whether a High Contracting Party has
complied with its obligations under a judgment given by it, the supervision
of the execution of judgments being entrusted to the Committee of Ministers
by virtue of Article 46 § 2 of the Convention.

It follows that the application is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 § 4.